EMPLOYMENT CASE LAW – GRIEVANCE

Although there is no legal requirement for an Organisation to have a grievance procedure for Employees to raise their dissatisfactions, it is good Employee relations practice to put such a procedure in place. Failing to hear and manage Employee complaints can lead to poor Employee relations, Employee dissatisfaction, higher levels of absenteeism and a higher turnover of Employees. In addition, a failure to have in place a clearly communicated grievance procedure can expose an Employer to liability for breaches of other legislation, in particular under the Unfair Dismissals Acts. The Code of Practice on Grievance and Disciplinary procedures sets out principles which should be adhered to in any grievance management procedure. It sets out the rights of an Employee which must be upheld throughout the procedure. Although a breach of the Code does not automatically leave an Organisation open to litigation or fines in itself, a failure to adhere to the principles in the Code may increase the risk of a claim of constructive dismissal by an Employee.

The general principles which should be applied in every grievance procedure as set out in the Code are as follows:

- The procedure must be rational and fair.

- The basis for any grievance must be clear. - There must be an internal appeals mechanism. - Grievance procedures should generally commence with an informal stage where the Employee addresses the issue directly with their Manager before the formal process is commenced.

- The principles of natural justice must be adhered to:

Details of the complaint must be put to the Organisation.

The Organisation must be afforded an opportunity to respond.

The Employee should be afforded the opportunity to avail of representation, defined in the Code of Practice as a colleague, or member of a registered Trade Union, but not any other person or body unconnected with the enterprise.

The Employee has a right to a fair and impartial determination of the issues concerned taking account of relevant factors and evidence.

-Steps in the procedure should generally be progressive, however it is acknowledged that in certain situations the Employee may choose to raise an issue at the later stages of the procedure without recourse to the informal stages or other stages of the procedure. - The procedure should set out levels of responsibility for each stage of the procedure.

- Adequate records must be kept in relation to grievance situations.

Case Summary 1 – Importance of Documentation (The Central Hotel and Mr. Iacob Laurentiu)This case relates to an appeal by the Complainant of the decision of the Equality Officer in a number of discrimination claims one of which was constructive dismissal. The Complainant was a Romanian national who worked for the Respondent from 2002 until 2007 and submitted that the Respondent discriminated against him when it acted in an openly hostile and discriminatory manner over a prolonged period.

In relation to the claim of constructive dismissal the Court found this did not meet the criteria in Conway v Ulster Bank UD474/1981 where it was found that an Employee must substantially utilise the grievance procedure in an attempt to remedy complaints before resigning. It was submitted that the Complainant did not invoke the grievance procedure as his grievance was with the Managing Director and there was no suitable Manager to submit a grievance to.

Organisations should be aware of the importance of issuing written documentation to Employees, in particular disciplinary and grievance procedures. It is important that Organisations can prove that they have provided the relevant policies and procedures to Employees and that they have confirmed receipt of same.

Case Summary 2 – Option of Invoking Grievance Procedure – Vanessa Margate versus Atlanco The Claimant’s hours were 7.30am-5.30pm, with a one hour lunch break, Monday to Friday. She commenced maternity leave in October 2010. She was due to return in April 2011. She received a phone call from the Group HR Manager while on maternity leave. The Claimant asked if the Organisation could rearrange her hours or give her part-time hours. The Claimant emailed the HR Manager in March 2011 and stated that she would not be returning to work after her maternity leave as no arrangement was possible to reduce her hours.

During cross examination she agreed that she had asked the HR Manager for a reduction in hours or part-time work. She was unaware of the Company’s grievance procedure.The Group HR Manager gave evidence. She rang the Claimant towards the end of her maternity leave to find out if she was returning or taking unpaid leave. The Claimant asked for a reduction in hours or to go part-time. The HR Manager did not think that part-time hours would be possible. She and the Line Manager spoke to the Operations Director. It was decided that the section was too busy to accommodate a reduction in hours. She phoned the Claimant and told her that unfortunately it was not possible to reduce her hours. The Claimant said that she had no alternative but to leave. The HR Manager told her not to rush into anything and that she could take unpaid leave and see if anything else could be arranged.

In a majority decision, the Employment Appeals Tribunal found that the Claimant, in requesting a reduction of hours, had led the Respondent to believe that she could not work the designated hours required; and that at all times the Claimant had the option to invoke the grievance procedure in relation to her request for a reduction of hours. The Tribunal found that the Respondent could not be deemed to have acted unreasonably and therefore the Claimant’s case failed.

This case highlights amongst a number of areas the importance to Organisations of ensuring that Employees are at all times aware of an Organisation’s grievance procedure.